EXHIBIT 4.10
THIRD AMENDMENT TO FIVE-YEAR CREDIT AGREEMENT
---------------------------------------------
THIS AMENDMENT (herein so called) is entered into as of April 24, 2003,
among FMC TECHNOLOGIES, INC., a Delaware corporation ("Borrower"), the Lenders
(herein so called) party to the Credit Agreement (hereinafter defined) and BANK
OF AMERICA, N.A., as Administrative Agent (as defined in the Credit Agreement)
for the Lenders.
Borrower, the Lenders and the Administrative Agent are party to the
Five-Year Credit Agreement dated as of April 26, 2001, as amended by that
certain First Amendment to Five-Year Credit Agreement dated as of May 30, 2001
and that certain Second Amendment to Five-Year Credit Agreement dated as of
April 25, 2002 (as amended, the "Credit Agreement"), and have agreed, upon the
following terms and conditions, to further amend the Credit Agreement in certain
respects. Accordingly, for valuable and acknowledged consideration, Borrower,
the Lenders and the Administrative Agent agree as follows:
1. Terms and References. Unless otherwise stated in this Amendment, (a)
terms defined in the Credit Agreement have the same meanings when used in this
Amendment, and (b) references to "Sections", "Articles" and "Exhibits" are to
the Credit Agreement's sections, articles and exhibits.
2. Amendments.
(a) Section 1.01 is amended to delete the definition of "Letter of
Credit Sublimit" in its entirety and substitute the following definition in
lieu thereof:
"Letter of Credit Sublimit means an amount equal to
$100,000,000; provided that the Outstanding Amount of the
L/C Obligations arising out of the issuance of Letters of
Credit that are considered by the Administrative Agent, in
the exercise of its sole discretion, to be "financial
standby letters of credit", within the meaning of such
phrase in the risk-based capital regulations set forth in
Part 325 of Title 12 of the Code of Federal Regulations,
shall not exceed an amount equal to $10,000,000. The Letter
of Credit Sublimit is part of, and not in addition to, the
Aggregate Commitments."
(b) Article V is amended to add the following new Section 5.12:
5.12 Tax Shelter Regulations. The Borrower does not
intend to treat the Loans and/or Letters of Credit and
related transactions as being a "reportable transaction"
(within the meaning of Treasury Regulation Section
1.6011-4). In the event the Borrower determines to take any
action inconsistent with such intention, it will promptly
notify the Administrative Agent thereof. If the Borrower so
notifies the Administrative Agent, the Borrower acknowledges
that one or more of the Lenders may treat its Loans as part
of a transaction that is subject to Treasury Regulation
Section 301.6112-1, and such Lender or Lenders, as
applicable, will maintain the lists and other records
required by such Treasury Regulation.
Third Amendment to Credit Agreement - Page 1
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(c) Section 6.01 is amended by deleting Sections 6.01(i) and (j) and
substituting the following Sections 6.01(i), (j), and (k) in lieu thereof:
(i) as soon as practicable after a Principal Officer of
the Borrower obtains knowledge of the commencement of an
action, suit or proceeding against the Borrower or any
Subsidiary before any court or arbitrator or any
governmental body, agency or official in which there is a
reasonable likelihood of an adverse decision which would
have a Material Adverse Effect or which in any manner
questions the validity or enforceability of this Agreement
or any of the transactions contemplated hereby, information
as to the nature of such pending or threatened action, suit
or proceeding;
(j) promptly after the Borrower has notified the
Administrative Agent of any intention by the Borrower to
treat the Loans and/or Letters of Credit and related
transactions as being a "reportable transaction" (within the
meaning of Treasury Regulation Section 1.6011-4), a duly
completed copy of IRS Form 8886 or any successor form; and
(k) from time to time such additional information
regarding the business, properties, financial position,
results of operations, or prospects of the Borrower or any
Subsidiary as the Administrative Agent, at the request of
any Lender, may reasonably request.
(d) Section 10.08 is amended to add the following sentence at the end
thereof:
Notwithstanding anything herein to the contrary,
"Information" shall not include, and the Administrative
Agent and each Lender may disclose without limitation of any
kind, any information with respect to the "tax treatment"
and "tax structure" (in each case, within the meaning of
Treasury Regulation Section 1.6011-4) of the transactions
contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are provided to the
Administrative Agent or such Lender relating to such tax
treatment and tax structure other than information or
materials for which nondisclosure is reasonably necessary in
order to comply with applicable securities laws; provided
that with respect to any document or similar item that in
either case contains information concerning the tax
treatment or tax structure of the transaction as well as
other information, this sentence shall only apply to such
portions of the document or similar item that relate to the
tax treatment or tax structure of the Loans, Letters of
Credit and transactions contemplated hereby.
3. Conditions Precedent to Effectiveness. This Amendment shall not be
effective until the Administrative Agent receives (a) counterparts of this
Amendment executed by Borrower, the Required Lenders and the Administrative
Agent, (b) such evidence as the Administrative Agent may reasonably request to
verify that Borrower is duly incorporated, validly existing and in good standing
in its
Third Amendment to Credit Agreement - Page 2
-----------------------------------
jurisdiction of incorporation, (c) a certificate signed by a Principal Officer
of Borrower (i) certifying that there has been no event or circumstance since
December 31, 2002, which has had or could reasonably be expected to have a
Material Adverse Effect, (ii) showing the Debt Ratings of Borrower on the date
hereof, and (iii) stating that no amendments have been made to the certificate
of incorporation or bylaws of Borrower since April 30, 2001 or, if any such
amendments have been made, attaching true and correct copies of the certificate
of incorporation or bylaws of Borrower, as so amended, (d) a certificate signed
by a Principal Officer of Borrower certifying as to the incumbency of the
Principal Officer of Borrower executing this Amendment, and attaching true and
correct copies of resolutions adopted by the Board of Directors of Borrower
authorizing Borrower to enter into this Amendment and verifying the authority
and capacity of such Principal Officer to execute this Amendment, (e) an opinion
of Xxxxx Xxxxxx, Associate General Counsel and Assistant Secretary of Borrower,
substantially in the form of Exhibit A attached hereto, (f) an opinion of Mayer,
Brown, Xxxx & Maw, special New York counsel to Borrower, substantially in the
form of Exhibit B attached hereto, and (g) such other documents, instruments and
certificates as the Administrative Agent may reasonably request.
4. Representations. Borrower represents and warrants to the Lenders that
as of the date of this Amendment, (a) the representations and warranties
contained in Article V are true and correct in all material respects except to
the extent that such representations and warranties refer to an earlier date, in
which case they were true and correct in all material respects as of such
earlier date, and (b) no Default or Event of Default has occurred and is
continuing.
5. Effect of Amendment. This Amendment is a Loan Document. Except as
expressly modified and amended by this Amendment, all of the terms, provisions
and conditions of the Loan Documents shall remain unchanged and in full force
and effect. The Loan Documents and any and all other documents heretofore, now
or hereafter executed and delivered pursuant to the terms of the Credit
Agreement are hereby amended so that any reference to the Credit Agreement shall
mean a reference to the Credit Agreement as amended hereby.
6. Counterparts. This Amendment may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed to be an original and all of
which taken together shall constitute one and the same instrument.
7. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.]
Third Amendment to Credit Agreement - Page 3
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EXECUTED as of the date first stated above.
FMC TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
------------------------------
Title: Director, Treasury Operations
------------------------------
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Signature Page to Third Amendment to FMC Technologies Five-Year Credit Agreement
EXECUTED as of the date first stated above.
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------
Title: Agency Management Officer
------------------------------
BANK OF AMERICA, N.A., as a Lender
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Signature Page to Third Amendment to FMC Technologies Five-Year Credit Agreement
EXECUTED as of the date first stated above.
BANK OF AMERICA, N.A., as Administrative
Agent
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxx X. XxXxxx
-------------------------------------
Name: Xxxxxx X. XxXxxx
------------------------------
Title: Managing Director
------------------------------
Signature Page to Third Amendment to FMC Technologies Five-Year Credit Agreement
EXECUTED as of the date first stated above.
DEN NORSKE BANK ASA, as a Lender
By: /s/ Nils Fyske
-------------------------------------
Name: Nils Fyske
------------------------------
Title: Senior Vice President
------------------------------
By: /s/ Xxxx Xxxxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxxxx
------------------------------
Title: Vice President
------------------------------
Signature Page to Third Amendment to FMC Technologies Five-Year Credit Agreement
EXECUTED as of the date first stated above.
COOPERATIVE CENTRALE RAIFFEINSEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH, as Lender
By: /s/ Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxx
------------------------------
Title: Vice President
------------------------------
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------
Title: Managing Director
------------------------------
Signature Page to Third Amendment to FMC Technologies Five-Year Credit Agreement
EXECUTED as of the date first stated above.
THE ROYAL BANK OF SCOTLAND PLC,
as a Lender
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
------------------------------
Title: Senior Vice President
------------------------------
Signature Page to Third Amendment to FMC Technologies Five-Year Credit Agreement
EXECUTED as of the date first stated above.
WESTLB AG (formerly known as
Westdeutsche Landesbank Girozentrale),
NEW YORK BRANCH, as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
------------------------------
Title: Director
------------------------------
By: /s/ Xxxxxxxxx Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
------------------------------
Title: Managing Director
------------------------------
Credit Department
------------------------------
Signature Page to Third Amendment to FMC Technologies Five-Year Credit Agreement
EXECUTED as of the date first stated above.
DANSKE BANK, as a Lender
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
------------------------------
Title: Vice President
------------------------------
By: /s/ Xxxx X. X'Xxxxx
-------------------------------------
Name: Xxxx X. X'Xxxxx
------------------------------
Title: Assistant General Manager
------------------------------
Signature Page to Third Amendment to FMC Technologies Five-Year Credit Agreement
EXECUTED as of the date first stated above.
WACHOVIA BANK, N.A., as a Lender
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------
Title: Vice President
------------------------------
Signature Page to Third Amendment to FMC Technologies Five-Year Credit Agreement
EXECUTED as of the date first stated above.
XXXXX FARGO BANK TEXAS, NATIONAL
ASSOCIATION, as a Lender
By: /s/ Xxxx X. Xxxxxxxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxxxxxxx
------------------------------
Title: Vice President
------------------------------
Signature Page to Third Amendment to FMC Technologies Five-Year Credit Agreement
EXECUTED as of the date first stated above.
THE BANK OF NEW YORK, as a Lender
By: /s/ Xxxx X'Xxxxxx
-------------------------------------
Name: Xxxx X'Xxxxxx
------------------------------
Title: Vice President
------------------------------
Signature Page to Third Amendment to FMC Technologies Five-Year Credit Agreement
EXECUTED as of the date first stated above.
THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
------------------------------
Title: Second Vice President
------------------------------
The Northern Trust Company
-------------------------------------
Signature Page to Third Amendment to FMC Technologies Five-Year Credit Agreement
EXECUTED as of the date first stated above.
NATIONAL CITY BANK,
as a Lender
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
------------------------------
Title: Senior Vice President
------------------------------
Signature Page to Third Amendment to FMC Technologies Five-Year Credit Agreement
EXECUTED as of the date first stated above.
BANCA NAZIONALE DEL LAVORA SPA,
as a Lender New York Branch
By: /s/ Xxxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxx
------------------------------
Title: Vice President
------------------------------
By: /s/ Xxxxxxxx Xxxxxxxxx
-------------------------------------
Xxxxxxxx Xxxxxxxxx
First Vice President
Signature Page to Third Amendment to FMC Technologies Five-Year Credit Agreement
EXECUTED as of the date first stated above.
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ R. Xxxxxxx Xxxxxx
-------------------------------------
Name: R. Xxxxxxx Xxxxxx
------------------------------
Title: Vice President
------------------------------
Signature Page to Third Amendment to FMC Technologies Five-Year Credit Agreement
EXHIBIT A
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FORM OF OPINION OF XXXXX XXXXXX
-------------------------------
__________, 2003
To Bank of America, N.A., as Administrative Agent,
and each of the Lenders party to
the Credit Agreement referred to below
Re: FMC Technologies, Inc.
Ladies and Gentlemen:
I am the Associate General Counsel and Assistant Secretary of, and have
acted as counsel to, FMC Technologies, Inc. (the "Borrower") in connection with
the preparation, execution and delivery of, and the consummation of the
transactions contemplated by, the Five-Year Credit Agreement dated as of April
26, 2001, as amended by the First Amendment to Five-Year Credit Agreement dated
as of May 30, 2001, the Second Amendment to Five-Year Credit Agreement dated as
of April 25, 2002, and the Third Amendment to Five-Year Credit Agreement dated
as of April 24, 2003 (the "Third Amendment") (such Credit Agreement, as so
amended, the "Credit Agreement"), by and among the Borrower, the Lenders party
thereto, and Bank of America, N.A., as agent for the Lenders (the
"Administrative Agent").
This opinion is rendered to you pursuant to Section 4(b) of the Third
Amendment. Capitalized terms defined in the Credit Agreement, used herein, and
not otherwise defined herein, shall have the meanings given them in the Credit
Agreement.
In so acting, I have examined originals or copies (certified or otherwise
identified to my satisfaction) of the following documents:
1. the Credit Agreement; and
2. the Third Amendment.
The agreements specified in clauses (1) and (2) are collectively referred
to as the "Agreements."
In addition, I have examined such corporate records, agreements, documents
and other instruments, and such certificates or comparable documents of public
officials and of officers and representatives of each of the Borrower, and have
made such inquiries of such officers and representatives, as I have deemed
relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, I have assumed the genuineness of all signatures, the
legal capacity of all natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to the opinions set forth herein that have not been independently
established, I have relied upon certificates or comparable documents of officers
and representatives of the Borrower and upon the representations and warranties
of the Borrower contained in the Agreements.
A-1 Exhibit A
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I am licensed to practice law in the State of Illinois, and this opinion is
limited to the laws of the State of Illinois, the General Corporation Law of the
State of Delaware and the federal laws of the United States of America.
Based on the foregoing, and subject to the qualifications stated herein, I
am of the opinion that:
1. The Borrower is a corporation validly existing and in good standing
under the law of the State of Delaware and has all requisite corporate
power and authority to own, lease and operate its properties and to
carry on its business as now being conducted.
2. The Borrower is duly qualified to transact business and is in good
standing as a foreign corporation in each jurisdiction where the
failure to be so qualified would have a Material Adverse Effect.
3. The Borrower has all requisite corporate power and authority to
execute, deliver and perform the Agreements. The execution, delivery
and performance by the Borrower of the Agreements have been duly
authorized by all necessary corporate action on the part of the
Borrower. The Borrower has duly executed and delivered the Agreements.
An Illinois state court or a federal court sitting in the State of
Illinois in a diversity action should, under conflicts of law
principles observed by the courts of the State of Illinois, if
properly presented with the issue, give effect to those provisions of
the Agreements providing that the Agreements are to be governed by and
construed in accordance with the law of the State of New York insofar
as such provisions relate to the substantive laws of the State of New
York and to the validity, nature, interpretation and effect of the
Agreements, except (i) to the extent, if any, that federal law
applies, (ii) to the extent procedural (as opposed to substantive)
laws are involved, or (iii) to the extent that the applicable laws of
New York violate a public policy of the State of Illinois.
4. The execution, delivery and performance by the Borrower of the
Agreements will not conflict with, constitute a default under or
violate (i) any of the terms, conditions or provisions of the
Certificate of Incorporation or By-laws of the Borrower, (ii) any of
the terms, conditions or provisions of any material contractual
obligation of the Borrower of which I am aware, (iii) any Illinois,
Delaware corporate or federal requirement of law or (iv) any judgment,
writ, injunction, decree, order or ruling of any court or governmental
authority of which I am aware which is binding on the Borrower.
5. No consent, approval, waiver, license or authorization or other action
by or filing with any Illinois, Delaware corporate or federal
Governmental Authority of which I am aware is required in connection
with the execution, delivery or performance by the Borrower of the
Agreements.
6. The borrowings by and other financial accommodations provided to the
Borrower under the Agreements and the application of proceeds thereof
as provided in the Credit Agreement will not violate Regulation U or X
of the Board.
A-2 Exhibit A
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7. The Borrower is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or a "holding company" or
a "subsidiary company" of a "holding company" within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
8. To my knowledge, there is no action, suit, proceeding, governmental
investigation or arbitration, at law or in equity or before any
governmental authority, pending or overtly threatened against the
Borrower (i) with respect to any Agreement or challenging any of the
Lenders' or the Administrative Agent's rights or remedies thereunder
or (ii) which is reasonably likely to be adversely determined and, if
so determined, would be reasonably likely to materially adversely
affect the ability of the Borrower to perform its obligations under
the Agreements.
My opinion in Paragraph 4(iii) is based upon my review of those
requirements of law which in my experience are normally applicable to or
normally relevant in connection with transactions of the type provided for in
the Agreements. For purposes of my opinion in the last sentence of Paragraph 3,
I have assumed that New York law bears a reasonable relationship to the
transactions contemplated by the Agreements.
The opinions expressed herein are effective only as of the date of this
opinion letter. I do not assume responsibility for updating this opinion letter
as of any date subsequent to the date of this opinion letter, and I assume no
responsibility for advising you of (i) any change with respect to any matter
described in this opinion letter or (ii) the discovery subsequent to the date of
this opinion letter of factual information not previously known to me pertaining
to events occurring prior to the date of this opinion letter.
This opinion letter is rendered solely to you in connection with the
above-described transactions. This opinion letter may not be relied upon by you
for any other purpose, or relied upon by any other Person (other than your
successors and permitted assigns under the Credit Agreement) for any purpose,
without in each case my prior written consent.
Very truly yours,
A-3 Exhibit A
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EXHIBIT B
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FORM OF OPINION OF MAYER, BROWN, XXXX & MAW
-------------------------------------------
_____________, 2003
Bank of America, N.A.
and each of the other financial
institutions that is a party to the
Credit Agreement referred to below
c/o Bank of America, N.A., as Administrative Agent
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Ladies and Gentlemen:
We have acted as special New York counsel for FMC Technologies, Inc., a
Delaware corporation (the "Borrower"), in connection with the Five-Year Credit
Agreement dated as of April 26, 2001, as amended by the First Amendment to
Five-Year Credit Agreement dated as of May 30, 2001, the Second Amendment to
Five-Year Credit Agreement dated as of April 25, 2002, and the Third Amendment
to Five-Year Credit Agreement dated as of April 24, 2003 (the "Third Amendment")
(such Credit Agreement, as so amended, the "Credit Agreement") among the
Borrower, various financial institutions and Bank of America, N.A., as
Administrative Agent. Terms defined in the Credit Agreement are used herein as
therein defined. This opinion letter is being rendered to you at the request of
our clients pursuant to the requirements of the Third Amendment.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of (i) the Credit Agreement, (ii) the Third Amendment, and
(iii) such documents, corporate records, certificates of public officials and of
officers and representatives of the Borrower and other instruments, and have
conducted such other investigations of fact and law, as we have deemed necessary
or advisable for purposes of this opinion letter. Except as described in the
foregoing sentence, we have not undertaken any independent investigation of any
factual matters which might be relevant to this opinion letter and we have made
no independent investigation of the records of, or other matters relating to,
the Borrower or any other Person.
For the purposes of this opinion letter, we have assumed that all items
submitted to us as originals are complete and authentic and all signatures
thereon are genuine, and all items submitted to us as copies are complete and
conform to the originals. We have also assumed, with your permission and without
independent investigation of any kind, the following: (i) the Borrower has been
duly incorporated and is validly existing and is in good standing under the laws
of the State of Delaware; (ii) the Borrower has the corporate power and
authority to execute, deliver and perform its obligations under the Third
Amendment and the Credit Agreement; (iii) the Borrower has the corporate power
and authority to execute, deliver and perform its obligations under the Third
Amendment and the Credit Agreement; (iv) the Borrower has taken all corporate
action required to duly authorize the execution, delivery and performance by it
of the Third Amendment and the Credit Agreement; (v) the Third Amendment and the
Credit Agreement have been duly authorized, executed and delivered by the
Borrower, (vi) the Third Amendment and the Credit Agreement are the legal, valid
and binding obligations of each party thereto (other than the Borrower)
B-1 Exhibit B
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enforceable against each such party in accordance with its terms; (vii) the
execution, delivery and performance of the Third Amendment and the Credit
Agreement by the Borrower (a) are in accordance with (and do not conflict with)
the laws of the State of Delaware, (b) do not violate or contravene the
organizational documents or by-laws of the Borrower, and (c) do not violate or
contravene any provision of any agreement or contract applicable to or binding
upon the Borrower; and (viii) there are no agreements or understandings among
the parties, written or oral, and no usage of trade or course of prior dealing
among the parties which would, in either case, define, supplement or qualify the
terms of the Third Amendment or Credit Agreement.
Upon the basis of the foregoing and the other assumptions and
qualifications set forth herein, we are of the opinion that:
1. The Credit Agreement constitutes a valid and binding agreement of the
Borrower, enforceable in accordance with its terms.
2. The Third Amendment constitutes a valid and binding agreement of the
Borrower, enforceable in accordance with its terms.
Our opinions set forth above are subject to the following qualifications:
(a) We express no opinion as to any law, rule, regulation, ordinance, code
or similar provision of law of any county, municipality, or similar
political subdivision of the State of New York or any agency or
instrumentality thereof, and we express no opinion as to any law to
which the Borrower may be subject solely as a result of your legal or
regulatory status or as to any insurance law or any federal or state
securities or "blue sky" law. Members of our Firm are admitted to
practice law in the State of New York and we express no opinion on any
law other than the laws of the State of New York and the Federal law
of the United States to the extent specifically set forth herein.
(b) Our opinions are subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or
similar laws affecting creditors' rights generally and to the effect
of general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including (without limitation)
concepts of materiality, reasonableness, good faith and fair dealing
and by limitations on the availability of specific performance,
injunctive relief or other equitable remedies.
(c) We express no opinion as to:
(i) obligations relating to indemnification, contribution or
exculpation of costs, expenses or liabilities which contravene public
policy;
(ii) the enforceability, under certain circumstances, of
provisions imposing penalties or forfeitures, late payment charges or
an increase in interest rate upon delinquency in payment or the
occurrence of a default;
B-2 Exhibit B
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(iii) any agreement by the Borrower to the subject matter
jurisdiction of a United States federal court, to the waiver of the
right to jury trial or to be served with process by service upon a
designated third party;
(iv) any agreement by the Borrower purporting to waive any
objection to the laying of venue or any claim that an action or
proceeding has been brought in an inconvenient forum;
(v) the effect of the law of any jurisdiction other than the
State of New York wherein any Lender may be located or wherein the
enforcement of the Third Amendment or the Credit Agreement may be
sought that limits the rates of interest, fees or other charges
legally chargeable or collectible;
(vi) any provision of the Third Amendment or the Credit
Agreement (A) restricting access to legal or equitable remedies, (B)
relating to severability or similar clauses, (C) providing that the
Third Amendment or the Credit Agreement may only be amended, modified
or waived in writing, (D) stating that all rights or remedies of any
party are cumulative and may be enforced in addition to any other
right or remedy and that the election of a particular remedy does not
preclude recourse to one or more remedies, (E) purporting to establish
an evidentiary standard for determinations by the Lenders or the
Administrative Agent or (F) purporting to convey rights to Persons
other than parties to the Third Amendment or the Credit Agreement;
(vii) whether any court outside the State of New York would
honor the choice of New York law as the governing law of the Third
Amendment and the Credit Agreement; or
(viii) Section 10.09 of the Credit Agreement.
The opinions expressed herein are effective only as to the date of this
opinion letter. We do not assume responsibility for updating this opinion letter
as of any date subsequent to the date of this opinion letter, and we assume no
responsibility for advising you of (i) any changes with respect to any matters
described in this opinion letter or (ii) the discovery subsequent to the date of
this opinion letter of factual information not previously known to us pertaining
to the events occurring prior to the date of this opinion letter.
This opinion letter is rendered solely to you in connection with the
above-described transactions. This opinion letter may not be relied upon by you
for any other purpose, or relied upon by any other Person (other than your
successors and permitted assigns under the Credit Agreement) for any purpose,
without in each case our prior written consent.
Very truly yours,
-------------------------
B-3 Exhibit B
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